F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

TENTH CIRCUIT

March 27, 2006

Elisabeth A. Shumaker

Clerk of Court

THOMAS WOODBERRY,
Petitioner-Appellant,

No. 05-3255

v.

(D. of Kan.)

DAVID McKUNE, Warden, and

ATTORNEY GENERAL OF THE
STATE OF KANSAS,

(D.C. No. 03-CV-3323-SAC)

Respondents-Appellees.
ORDER *
Before HARTZ , EBEL , and TYMKOVICH , Circuit Judges.

**

Petitioner-Appellant Thomas Woodberry, a state prisoner appearing pro se,

is a frequent filer in both the state and federal courts. This appeal stems from the
district courts transfer of Mr. Woodberrys 28 U.S.C. 2254 motion as a
successive or second habeas petition, which we subsequently dismissed. The
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
*

After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
**

Supreme Court dismissed his petition for a writ of certiorari.

Woodberry v.

Kansas , Nos. 04-3250, 04-3252 (10th Cir. Sept. 1, 2004) (unpublished),

cert.

dismissed , 543 U.S. 1191 (2005).

After these unsuccessful appeals, Mr. Woodberry filed in the district court
a motion for relief from judgment under Fed. R. Civ. P. 60(b), claiming the
respondents misrepresented facts during the habeas proceedings so as to erect a
procedural bar to his claims and consequently preclude review of the merits. The
district court denied the motion, noting that it was a successive habeas petition for
which Mr. Woodberry had failed to seek authorization from this court as required
by 28 U.S.C. 2244(b)(3). The court further cautioned Mr. Woodberry to seek
leave of the court before submitting additional pleadings in this matter.

He now

appeals.
As the Supreme Court recently held, a Rule 60(b) motion should not be
construed as a second or successive habeas petition where it alleges a defect in
the integrity of the federal habeas proceedings under 2254.

Gonzalez v.

Crosby , 125 S. Ct. 2641, 2648 (2005). Fraud on the federal habeas court is one
example of such a defect.

Id. at 2648 n.5.

Despite this warning, Mr. Woodberry filed yet another Rule 60(b) motion
in the district court, again alleging fraud and misrepresentation by the government
during the previous series of appeals. The district court denied this motion,
noting that it had no basis for jurisdiction as Mr. Woodberry had failed to seek
leave of the court before submitting his pleading.
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Yet, even assuming a liberal construction of Mr. Woodberrys fraud claim

asserts such a defect, his claim still should be dismissed. When fraud is alleged,
it must be pleaded with particularity. Fed. R. Civ. P. 9(b);
Oklahoma , 58 F.3d 1447, 1471 (10th Cir. 1995),

see also Hatch v.

overruled on other grounds by

Daniels v. United States , 254 F.3d 1180, 1188 n.1 (10th Cir. 2001) (noting that to
be entitled to an evidentiary hearing on claims raised in a habeas petition, the
petitioners allegations must be specific and particularized, not general or
conclusory). Mr. Woodberrys conclusory allegation of fraud upon the court
as evidenced by the governments misrepresentation of the disputed facts, Aplt.s
Br. at 3, does not satisfy this standard.
Additionally, we sua sponte impose restrictions on future filings in this
court by Mr. Woodberry commensurate with our inherent power to enter orders
necessary or appropriate in aid of our jurisdiction under 28 U.S.C. 1651.
Winslow v. Hunter (In re Winslow)

, 17 F.3d 314, 315 (10th Cir. 1994) (en banc).

The right of access to the courts is neither absolute nor unconditional, and there
is no constitutional right of access to the courts to prosecute an action that is
frivolous or malicious.

Id. (quotation omitted). Thus, when a litigant repeatedly

abuses the judicial process, the district court possesses the inherent power to
impose filing restrictions necessary to aid its jurisdiction.

Id. This court

approves restrictions placed on litigants with a documented lengthy history of

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vexatious, abusive actions, so long as the court publishes guidelines about what
the plaintiff must do to obtain court permission to file an action, and the plaintiff
is given notice and an opportunity to respond to the restrictive order.

Werner v.

Utah , 32 F.3d 1446, 1448 (10th Cir. 1994).

Since 2001, Mr. Woodberry has filed twenty-two appeals with this court.
We have repeatedly denied and dismissed those actions, finding them to be not
only wholly without merit, but also legally frivolous.
Accordingly, we hereby ENJOIN Mr. Woodberry from proceeding as an
appellant unless either (1) he is represented by a licensed attorney admitted to
practice in this court, or (2) he first obtains permission to proceed pro se.
To proceed pro se, Mr. Woodberry must take the following steps:
1.

File a petition with the clerk of this court requesting leave to file a
pro se action, which includes a list of all actions currently pending or
filed previously with this court, including the name, number, and
citation, if applicable, of each case, and the current status or
disposition of the appeal; and

2.

File with the clerk a notarized affidavit, in proper legal form, which
recites the issues he seeks to present, including a short discussion of
the legal basis asserted for modifying the district courts decision,
and describing with particularity the order being challenged. The
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affidavit also must certify, to the best of Mr. Woodberrys

knowledge, that the legal arguments being raised are not frivolous or
made in bad faith, that they are warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing
law, that the appeal is not interposed for any improper purpose such
as delay or to needlessly increase the cost of litigation, and that he
will comply with all appellate and local rules of this court.
These documents shall be submitted to the clerk of the court, who shall
forward them to the Chief Judge for review to determine whether to permit an
appeal. Without the Chief Judges approval, the matter will be dismissed. If the
Chief Judge approves the filing, an order shall be entered indicating that the
appeal shall proceed in accordance with the Federal Rules of Appellate Procedure
and the Tenth Circuit Rules.
Mr. Woodberry shall have fifteen days from the date of this order to file
written objections, limited to fifteen pages, to these proposed sanctions. If he
does not file objections, the sanctions shall take effect twenty days from the date
of this order. The filing restrictions shall apply to any matter filed after that time.
If petitioner does file timely objections, these sanctions shall not take effect until
after this court has ruled.

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Accordingly, we DISMISS Mr. Woodberrys appeal. We caution Mr.

Woodberry to consider the filing restrictions placed upon him by both this court

and the district court.

Entered for the Court

Clerk of the Court

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